By Seth Ogilvie, Idaho Reports
Seven years ago, the state of Idaho killed two men in a six month period.
Only a few people at the Idaho Department of Correction know exactly how these men died.
In 2017, University of Idaho professor Aliza Cover submitted a public records request to find out what happened in the “green room,” the small cream colored execution chamber at the Idaho Maximum Security Institution.
“The public doesn’t really have enough information to make an informed decision about at least the methods by which we’re putting people to death,” Cover told Idaho Reports.
But the Department of Correction has refused to comply with an April 5th order from District Judge Lynn Norton to hand over documents related to the executions, and Cover’s lawyers passed up an opportunity to challenge that refusal.
In the most recent hearing, Norton asked Cover’s attornies why they had not asked the state to be held in contempt.
On September 17th, Norton ordered a trial. In court, Norton mused it was the only procedural remedy if contempt hearings were not initiated.
The question in the upcoming trial: Should Idahoans know how people are executed with their taxpayer dollars?
“These are obvious matters of extreme societal significance, perhaps the apex of societal significance,” Ritchie Eppink, Legal Director for the Idaho ACLU told Idaho Reports.
IDOC offers a little transparency. Three reporters witnessed the executions. They saw pentobarbital injected into the two men, but they did not see how the drugs were procured and stored, or how the fatal cocktail was prepared. “Idaho officials are trying to keep this information from the public.” Cover said.
The Department of Correction claims the secrecy is about the safety and privacy of the people involved in the execution, from the doctors who administer the drugs to the companies that manufacture them. “The idea that we as a people would collectively kill someone,” Eppink said, “Those issues of privacy just simply do not arise here.”
There was a national crisis in 2010 to 2011 when drugs used in executions became scarce, Cover said. “It created a pattern of states turning to secrecy where there hadn’t been a strong emphasis on secrecy before, because they didn’t have legitimate sources for the drugs or they were experimenting with new protocols that were not thought out and well established in terms of safety.”
The Rhoades and Leavitt executions in 2011 and 2012 were right in that wake that national crisis.
“We know that states are hiding things that are scandalous and are criminal,” Eppink Said. “These are the kinds of things that make ordinary people drop their jaws.” Eppink is referencing experimental execution drugs and procedures in states like Tennessee, Nevada, and Oklahoma.
Revealing the manufacturer of the drugs could put people at risk, argues the state. “The source has significant concerns that the source would be subjected to harassment and harm to the source’s business,” Jeff Zmuda, deputy director of the Idaho Department of Correction, said in a sworn deposition.
This conflict creates a catch 22 for Idaho. “Disclosing the identity of the source of a lethal injection,” said Deputy Attorney General Jessica Kuehn, “would jeopardize the department’s ability to carry out an execution,”
According to Eppink, this creates a system where there is “no judicial oversight effectively, no legislative oversight, no public oversight of where our lethal injection drugs are coming from, whether they are safe, whether they are even appropriate for lethal injection in the first place. There is no way for the public to verify whether these drugs are even made by licensed suppliers. There is no way for the public to verify whether or not there are political or financial ties between the Department of Correction officials that are purchasing these drugs and the people that are supplying these drugs.”
Idaho Code gives the Department of Correction the ability to withhold documents when confidentiality, public safety, and security clearly outweighs the public interest in disclosure. The department of correction believes “disclosing such information would subject such chemical sources to harassment and pressure,” Kuehn said.
Idaho’s public records law states a public agency shall not prevent the examination or copying of a public record by contracting with a non-governmental body to perform any of its duties or functions. “It is exactly what is happening here,” Eppink said.
“The number of documents that actually discuss the drugs at all are very very small,” Kuehn said. Only three pages that are known of that actually discussed the source at all and who the source is.”
The almost year-long records request, however, has created an interesting document trail. First, the Department of Corrections provided five documents in a web link after the September 24, 2017, request.
After Cover petitioned the court, the Department of Corrections found hundreds of more pages of responsive documents.
Here are links to the bulk of the documents disclosed:
In the most recent court hearing, frustrations about the Department of Corrections disclosure were openly expressed by the judge.
“I have to tell you now I have some concerns,” Norton told the court. “Now you’re telling me 900 pages later that there were at least 900 pages of things that the state had not produced at that point. So it does give me pause as to whether the evidence at the hearing was actually accurate, quite frankly.”
Norton ordered disclosure of unredacted documents, including the source of the lethal injection drugs.
Despite the order, the Department of Correction did not disclose the source of the drugs, but continued to find documents. “They failed to do a diligent search,” Norton said in the most recent court appearance. “After the court’s order then (they) did a diligent search.”
The Department of Correction claimed that many of the newly found documents were not purposely withheld, but were missing in odd places. “A box containing execution-related documents was found in the office of an employee who has since promoted and no longer works at Central Office,” Zmuda said.
“It’s very clear that that’s not a well-thought-out file plan,” Norton told the court.
Idaho’s public records law has a time frame. The disclosure of records is supposed to be timely within three working days or for more time-intensive searches “no later than ten working days following the person’s request. Not making a prompt search “would allow a public agency, through a motion to reconsider, allow them to wait until after contested proceedings, after a final writ of mandate before diligently searching,” Eppink said.
“For an ordinary person trying to get access to the same information,” Cover said, “it would be really difficult to be able to sustain this kind of litigation.”
Norton modified the disclosure writ on Monday, allowing IDOC “to redact portions of record(s) that would identify the source of execution drugs for the Rhoades and Leavitt executions since this issue is reserved for a trial on the merits.”
The trial will get at the heart of the disagreement: Do Idaho citizens have a right to know how they are putting people to death, or, as the Department of Correction says, is the secrecy needed for capital punishment to exist?
“Even if the death penalty is constitutional, there may be an unconstitutional method for putting them to death,” said Cover. “If there is an unreasonable risk of pain and suffering to a human who’s being put to death then we have a constitutional problem. The death penalty is not the same thing as torture.”
The department and the state, however, are steadfast moving forward and “will not disclose, under any circumstance, the identity of certain individuals involved in executions, as well as any other information wherein the disclosure of that information could jeopardize the department’s ability to carry out an execution,” Kuehn said.
“Well, obviously, records that show that the department has been killing people illegally or is planning to kill people illegally, or there are reasons to expect that an execution has been or will be botched,” Eppink said. “That is going to jeopardize an execution.”